Opinion
No. 03 Civ. 580 (TPG).
April 11, 2005
OPINION
Plaintiff alleges that he was arrested and imprisoned by his parole officer, defendant George Mackey. The action is brought under 42 U.S.C. § 1983 and alleges violations of various Constitutional rights. Defendant moves to dismiss the complaint pursuant to Fed.R.Civ. 12(b)(6) on the ground that he is entitled to absolute immunity or, in the alternative, to qualified immunity.
The motion is denied.
The Complaint
The following is a summary of the allegations of the complaint.
On July 21, 1997 plaintiff was declared delinquent with respect to his parole release conditions for two reasons. First, he moved from his approved residence without approval or notification to his parole officer, defendant Mackey. Second, he failed to make his office report on July 23, 1997, as directed by defendant.
In response to these two problems, defendant authorized a parole warrant for plaintiff's arrest. However, plaintiff voluntarily surrendered to defendant on August 7, 1997, during an office report. Plaintiff was then handcuffed, seized, and taken to the Bronx House of Detention, and detained.
A parole preliminary hearing was conducted on August 15, 1997, in which the hearing officer ruled that plaintiff's arrest was not based on probable cause. Plaintiff was released from custody the same day.
Discussion
The law regarding absolute immunity and qualified immunity is well known. It may be that, when the facts are further developed, they will demonstrate that defendant has immunity. However, the court believes that the case should not be disposed of on the present record. It is likely that there is more to the case than what is revealed by plaintiff's complaint.
If defendant wishes to move for summary judgment, this can be done. This will give defendant the opportunity to provide the court with more facts, if defendant deems such facts relevant.
Defendant's motion to dismiss the complaint is denied with leave to file a motion for summary judgment.
SO ORDERED.